Terms and conditions

1 - Scope of application

1.1 The following General Terms and Conditions apply to all contracts and services rendered between and/or by remerge GmbH or any of its subsidiaries, hereinafter referred to as (“Remerge”) to its customers ("Customer"). Remerge is the provider of the remerge.io platform, a seamlessly integrated SDK-less programmatic advertising platform that enables advertisers to acquire new users and efficiently segment and manage their existing app’s user-base and retarget their users with relevant marketing messages (collectively, the “Remerge Services”). The following General Terms and Conditions apply to all business relationships between Remerge and its Customers with regard to the Customers’ use of the Remerge Services. Remerge may offer additional services or revise any of the Remerge Services, at its discretion, and these General Terms and Conditions will apply to all additional services or revised services. Remerge also reserves the right to cease offering any of the Remerge Services.

1.2 These General Terms and Conditions constitute a material part of each agreement unless expressly agreed otherwise in writing, and they apply to any future business transaction between Remerge and the Customer, even without express reference thereto.

1.3 Any deviating general terms and conditions of the Customer as well as any deviations and/or amendments to these General Terms and Conditions shall only become part of the agreement if they have been expressly acknowledged by Remerge in writing. These General Terms and Conditions shall also apply exclusively if Remerge has not explicitly objected to any contrary general terms and conditions or if Remerge unreservedly performs the Remerge Services in the knowledge of the Customer’s general terms and conditions. Individual agreements concluded with the Customer in individual cases (e.g. in an Insertion Order) have priority over these General Terms and Conditions.

1.4 Remerge reserves the right to modify these General Terms and Conditions with effect for the future at any time. In this case, Remerge will notify the Customer of these changes. The changes shall be deemed to be accepted if the Customer does not object within four weeks after receipt of the amendment notification. Remerge will inform the Customer in its amendment notification about the Customer’s right to object and the effects of a lack of objection. If the Customer rejects the changes, Remerge has the right to terminate the agreement.

2 - Offer and conclusion of a contract

2.1 Offers by Remerge are non-binding and subject to change, unless they are expressly identified as binding or contain a specific acceptance period. The offers will include, inter alia, the media costs and any other fees payable by the Customer to Remerge, the terms of the advertising campaigns, possible specific requirements by the providers of ad inventory (“Publishers”) or Real Time Bidding-Exchanges (“RTB Exchanges”) that the advertising campaigns must comply with, specific requirements for the advertising materials to be submitted by the Customer, etc.

2.2 The agreement between Remerge and the Customer is concluded upon signature of an individual order (“Insertion Order”) by Remerge and the Customer. In order to conclude the agreement, the Customer must send the countersigned Insertion Order to Remerge by email (“Acceptance”). In addition to any provisions contained in the Insertion Order, these General Terms and Conditions shall apply. In the event of any conflict, the terms of the Insertion Order shall have priority over these General Terms and Conditions.

2.3 The Customer acknowledges and agrees that contractual declarations (e.g. confirmation emails, amendments to the General Terms and Conditions as well as other notifications) may be sent in text form via email. They are deemed to have been received when they can be retrieved in the email inbox, which was specified by the Customer under normal circumstances. However, notifications of the Parties regarding the termination of an agreement have to be made in writing to be valid.

3 - Remerge services

3.1 Remerge shall render the Remerge Services in accordance with the terms of the respective Insertion Order and these General Terms and Conditions.

3.2 With respect to any advertising campaign, within the scope of the Insertion Order agreed with the Customer, Remerge selects and acquires in its free discretion and in its own name and for its own account the advertising inventory offered on third party media (such as mobile apps) on which the Customer’s creatives will be displayed (“Ad Inventory”) from the Publishers.

3.3 The key performance indicators and volumes of user activities (e.g. ad views, ad clicks, new app sessions, user registrations, etc.) that are included in an Insertion Order are non-binding estimates. Remerge does not warrant that an advertising campaign will achieve such key performance indicators and/or volumes. If an estimated or agreed volume cannot be reached within the agreed term, the Parties may either (i) mutually agree in text form (email is sufficient) to extend the term of the advertising campaign until such volume is reached (provided that appropriate Ad Inventory is available for such purpose) or (ii) terminate the advertising campaign at the end of the term. In the latter case, the Customer is only obligated to pay the media costs for the volume that was actually delivered.

3.4 In case of unforeseen events, Remerge is entitled to suspend the Remerge Services for maintenance or repair purposes if this is necessary to ensure the proper operation of the Remerge Services.

3.5 Remerge is entitled to use the assistance of third parties in order to fulfill its contractual obligations; provided that Remerge shall remain responsible and liable to the Customer for the acts and omissions of such third parties in performing the duties of Remerge under this agreement. If Remerge uses the assistance of such third parties, such third parties must comply with the same confidentiality obligations which are applicable to Remerge.

4 - Customer's rights and obligations

4.1 The Customer agrees to keep the passwords and login data provided by Remerge for access to the Remerge Services confidential and to inform Remerge immediately as soon as the Customer becomes aware of unauthorized third parties gaining access to these passwords. If, due to the Customer’s fault, unauthorized third parties use any services provided by Remerge by using the passwords, the Customer is liable to Remerge for usage fees and damages.

4.2 The Customer is obliged to provide Remerge with any information and data on marketing objectives, targeted users, etc. that are required to perform the Remerge Services in a timely manner.

4.3 The Customer will obtain access to reporting on its advertising campaigns via the Remerge Platform, via an API or by receiving an XLS or CSV-file upon request.

4.4 The Customer must follow Remerge’s instructions as well as the protocols and specifications provided by Remerge with regard to the telecommunication/data transmission.

5 - Creatives, advertising campaigns

5.1 If the Customer engages Remerge to conduct an advertising campaign, including the provision of media buying services, the Customer will deliver to Remerge appropriate advertising creatives in the form of banners and/or text that match the industry standards (e.g. 320x50, 320x480) to be displayed on the Ad Inventory (“Creatives”), unless expressly specified otherwise in the Insertion Order. The Customer acknowledges and agrees that its Creatives will meet the ad specifications as stated in the current Creative Specifications that are provided to the Customer by Remerge.

5.2 The Customer is obliged to provide the final Creatives, free of viruses and other harmful components, to Remerge in an advertising campaign.

5.3 The Customer hereby grants to Remerge for the term of the respective advertising campaign the non-exclusive, limited, revocable, worldwide right to use the Creatives and all contents therein provided by the Customer solely as necessary for the provision of the Remerge Services. This grant of rights includes all copyrights, neighbouring rights to copyright, trademarks, designs, rights to persons’ likenesses and any other rights necessary for such use of the Creatives, including but not limited to the right to publish, to reproduce, disseminate, distribute, transmit, make publicly available and edit the Creatives and all contents therein, solely to the extent necessary for the provision of the Remerge Services. Remerge is entitled to grant the Publishers sublicenses to the foregoing rights in the Creatives solely as necessary for integration and delivery of the Creatives on their RTB exchanges.

5.4 Remerge is entitled to reject Creatives that do not comply with the ad specifications or if Remerge has reason to assume that the Creatives’ content, the Customer’s mobile app and/or their use might violate applicable law, third party rights and/or the requirements or specifications of the Publishers. In such an event, Remerge may also adjourn an ongoing advertising campaign. Remerge will inform the Customer about such rejection and/or adjournment and allow the Customer to provide Remerge with different Creatives that comply with the ad specifications. This paragraph also applies if a Publisher rejects the Customer’s Creatives and/or adjourns an ongoing advertising campaign.

6 - Fees, payment

6.1 The fees for the Remerge Services are set out in the applicable Insertion Order. Unless explicitly stated otherwise, all fees are quoted exclusive of the statutory value- added tax (VAT), if applicable at the time. Invoices will be sent to the Customer in electronic form via email, unless expressly agreed otherwise.

6.2 The fees will be calculated and invoiced monthly on the basis of the delivered volumes of agreed user activities (e.g. ad views, ad clicks, new app sessions, user registrations, etc.) as recorded by Remerge. If there is a difference between measurements made by Remerge and by the Customer or third parties on behalf of the Customer, the discrepancy will be resolved as per Section XIII.d. of the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (hereinafter “IAB Standard Terms and Conditions”).

6.3 The payment of the invoices shall be due and payable within 30 days from the Customer’s receipt of the invoice solely via SEPA, ACH or international wire transfer to the bank account specified in the invoice. All transaction fees are to be paid by the Customer. In the event of the Customer’s default of payment, Remerge will charge default interest as agreed or in accordance with the statutory provisions, if applicable. Remerge reserves the right to prove and assert greater damages due to default. If the Customer’s payments are considerably delayed, Remerge reserves the right to suspend the provision of any further services, in particular the Customer’s access to the Remerge Services, at the expense of the Customer until all due payments have been made. In the event of suspended services, the Customer is nevertheless obliged to pay the agreed fees. After having set the Customer a reasonable deadline and expiration of that deadline, Remerge has the right to terminate the agreement with immediate effect. In case of returned direct debits or unpaid checks, the Customer shall reimburse Remerge for the costs incurred to the extent that the Customer was responsible for the event given rise to these costs. Further claims and rights to which Remerge may be entitled in this respect shall remain unaffected. Even if the Customer does not use the provided Remerge Services, the Customer is still obliged to pay the agreed fees.

6.4 Any complaints relating to an invoice must be submitted to Remerge by email to accounting@remerge.io within four weeks upon receipt of the invoice. If no such complaint has been made within four weeks upon receipt of invoice, the invoice is deemed to be accepted. Remerge will inform the Customer in the invoice about the consequences of failing to submit a timely complaint.

7 - Taxes, Withholding Tax

7.1 If Customer is required by any competent taxing authority to withhold taxes from its payments to Remerge hereunder and remit such taxes to the local taxing jurisdiction, Customer will inform Remerge before concluding a contract (signing the IO) on any Withholding Taxes that might be applicable to the Remerge Service, in order for Remerge to ensure issuing of a proper invoice referencing the Withholding Tax. Customer will remit such taxes to the appropriate local taxing authority, pay Remerge the remaining net amount after the taxes have been withheld and promptly provide Remerge a copy of an official tax certificate or receipt or other appropriate evidence of any taxes imposed on payments made under this Agreement. The parties agree to take all reasonable steps to reduce or eliminate Withholding Taxes under applicable law including income tax treaties.

7.2 Customer agrees to pay all sales tax, use tax, value added tax, goods and services tax, transaction tax or similar excise tax due to any taxing authority with respect to transactions resulting from this Agreement. If Remerge is required by any taxing authority to collect and remit any such taxes to a taxing authority, Remerge shall invoice any such taxes to the Customer and the Customer shall pay Remerge for such taxes.

7.3 As potentially applicable Withholding taxes, as far as they may not be set-off by Remerge, may impact Remerge's margin, these may have to be considered in our pricing. Customer shall indemnify Remerge from any losses incurred resulting from failure of the Customer to timely notify Remerge of such applicable tax.

8 - Grant of rights, ownership, collaboration

8.1 Upon conclusion of the agreement, Remerge grants the Customer and its affiliated entities the non-exclusive, non-transferable and non-sublicensable right to use the Remerge Services during the term of the agreement, insofar as this is necessary to use the Remerge Services according to the respective Insertion Order.

8.2 Remerge shall retain all intellectual property rights as well as any other property rights in and to the Remerge Services provided under this contract, including source codes, databases, hardware and/or any other material (e.g. documentations, developments, functions, report templates, preparatory material, etc.).

8.3 Customer shall retain all intellectual property rights as well as any other property rights in and to any and all of its Creatives, intellectual property and information provided to Remerge in connection with each Insertion Order, and the title in and to such Creatives and intellectual property shall remain vested in the Customer.

9 - Representations and warranties, indemnification

9.1 Each Party represents and warrants that it has the necessary rights as set out under Section XIV.a. of the IAB Standard Terms and Conditions.

9.2 The Customer represents and warrants that (a) the Customer is entitled to market the mobile app, (b) the Customer holds the rights granted in the Creatives and (c) the Creatives, all contents therein and its mobile app (i) are fully compliant with applicable law, (ii) do not infringe any third party’s rights, and (ii) do not contain or promote any illegal content, including but not limited to content that glorifies violence or war, is pornographic or harmful to minors, is deceptive or misleading, is defamatory or libelous; is liable to incite racial hatred or degrading, or is obscene or defamatory.

9.3 The Customer shall indemnify, defend and hold Remerge harmless from and against any claims, liability, damage, loss and/or expense (including reasonable attorneys’ fees and legal costs) arising from, relating to or in connection with a breach by the Customer of any of the Customer’s representations and warranties made under this section 9.

9.4 Remerge shall indemnify, defend and hold Customer and Customer’s affiliated entities harmless from and against any claims, liability, damage, loss and/or expense (including reasonable attorneys’ fees and legal costs) arising from, relating to or in connection with a breach by Remerge of any of Remerge’s representations and warranties made under this section 9.

10 - Liability

10.1 Remerge does not assume any liability for any damages resulting from a usage other than the intended use. Remerge does not assume any liability for any disturbances, limitations, interruptions or disruptions of the Remerge Services, which are caused by circumstances beyond Remerge’s area of responsibility.

10.2 Neither party shall have any liability (whether in contract, tort or otherwise) under or in connection with the Agreement for any special, indirect or consequential loss (whether such loss was foreseeable, known or otherwise).

10.3 Nothing in the Agreement excludes or limits either party’s liability for (a) fraud or fraudulent misrepresentation; (b) death or personal injury caused by negligence; or (c) anything which cannot be excluded or limited by law.

10.4 In the event that the governing law agreed in the Insertion Order is German law, the liability of the Parties for damages is excluded to the extent that the damages were not caused by a culpable breach of so-called “cardinal contractual obligations” (“Kardinalpflichten”). The limitations and exclusions of the Parties’ liability for damages set forth in these General Terms and Conditions, shall not apply to damages, for which a Party is otherwise liable pursuant to applicable mandatory law and regulations where such liability cannot be excluded by agreement between the Parties in advance, e.g. any product liability under the German Product Liability Act (“Produkthaftungsgesetz”).

10.5 Notwithstanding anything to the contrary in these General Terms and Conditions, a Party’s maximum liability arising under or in relation to the agreement and these General Terms and Conditions shall be limited to the amount of fees paid to Remerge by the customer in the 12 months preceding the date of the event giving rise to the claim upon which liability is based.

11 - Term, termination

11.1 These Terms shall apply for an indefinite duration until termination. The duration of an advertising campaign shall be specified in the respective Insertion Order.

11.2 Either party may terminate the agreement upon 48 hours’ written notice to the other party.

11.3 The right to immediate termination for cause shall remain unaffected. In particular, Remerge has the right to immediately terminate the agreement if the Customer breaches its obligations pursuant to Section 6.3, 9.1 or if the Customer is in default of payment and does not settle the outstanding payment upon receipt of a warning letter with a deadline for payment and expiration of that deadline to no avail if the Customer is insolvent, subject to insolvency proceedings, insolvency or proceedings have been commenced or the commencement of insolvency proceedings is dismissed due to lack of assets. if the Customer violates the provisions of these Terms and Conditions and fails to remedy this violation upon receipt of a written request with an adequate deadline. No such request is necessary if it has no prospect of success or if the violation is so serious that Remerge cannot be reasonably expected to adhere to the agreement. A violation is also deemed serious if the Customer has received notices of warnings several times because of similar violations.

11.4 Customer has the right to immediately terminate the agreement if Remerge breaches its obligations pursuant to Section 3.1 or 5.3 if the Remerge is insolvent, subject to insolvency proceedings, insolvency or proceedings have been commenced or the commencement of insolvency proceedings is dismissed due to lack of assets. if Remerge violates the provisions of these Terms and Conditions and fails to remedy this violation upon receipt of a written request with an adequate deadline. No such request is necessary if it has no prospect of success or if the violation is so serious that Customer cannot be reasonably expected to adhere to the agreement. A violation is also deemed serious if Remerge has received notices of warnings several times because of similar violations.

11.5 The termination must be made in writing and be submitted by email.

12 - Confidentiality

12.1 The parties shall have rights and obligations regarding non-disclosure as set out in Section XII of the IAB Standard Terms and Conditions.

13 - Use of data, data protection

13.1 Each party is obliged to comply with the applicable data protection laws when using and/or providing the Remerge Services. If applicable, the Customer is also obliged to comply with the US Children’s Online Privacy Protection Act (“COPPA”) when using the Remerge Services.

13.2 Some jurisdictions may require Remerge and Customer to enter into an additional agreement defining the scope and purposes of data processing as well as technical and organisational measures maintained to ensure a level of security appropriate to the risk (Data Processing Agreement, “DPA”). Remerge provides a standard DPA tailored to the Remerge Service here.

13.3 The Customer is obliged to (a) make available a privacy policy on its mobile apps and/ or mobile sites that complies with applicable data protection laws, (b) ensure that its mobile sites and/or mobile apps clearly provide appropriate and sufficiently prominent notice to users regarding the collection and use of tracking data, (c) make available a privacy policy and (d) if required by applicable law, provide for a mechanism for users to opt out of tracking. If a user opts out, the tracking mechanisms provided by Remerge must be fully disabled for such users.

13.4 The Customer is obliged to notify Remerge of any restrictions applying to the collection, processing and use of any user data in connection with an advertising campaign before the beginning of such advertising campaign, e.g. as a result from opt-outs by users or the lack of consent by users required under applicable law.

13.5 Remerge expressly agrees to not transfer any of the user data that the Customer provided to Remerge in order to enable Remerge to conduct an advertising campaign (“Customer’s first party data”) to any other advertiser and to not combine and/or mix the Customer’s first party data with other advertisers’ data.

13.6 Remerge expressly agrees that it shall use the user data as well as any user-related data that was collected, generated and/ or aggregated in connection with the Customer’s advertising campaigns only in order to improve and provide the Remerge Services for its Customers, and for no other purpose.

14 - Final provisions

14.1 Place of performance and exclusive place of jurisdiction for all disputes between the parties shall be as set out under the Insertion Order.

14.2 Unless expressly agreed otherwise, the legal relationship between Remerge and the Customer shall be governed by the laws of the jurisdiction set out under the Insertion Order.

14.3 Any modifications and or amendments of offers and these General Terms and Conditions must be made in writing (email sufficient). This also applies in case of a nullification of the written form requirement.

14.4 If any provision of these General Terms and Conditions or part thereof is invalid or becomes invalid at a later time, the validity of the remaining provisions shall remain unaffected. The relevant provision shall be replaced by a provision that as closely as possible reflects the economic purpose of the invalid provision. The foregoing shall apply analogously if any provision has inadvertently been omitted.